STATE OF OHIO + mp CASE NO. CR 09-08-1435 “ILED PanGlT U2 PM's: 82 SOunny oF MOTLER iNUY CARPE rER COURT OF COMMON PLEAS BUTLER COUNTY. ASUNCION AVILA-VILLA CLERK OF COURTS STATES MEMORANDUM IN 7 OPPOSITION TO DEFENDANT'S 2 MOTION NO. 47 Defendant JUDGE NASTOFF STATE’S MEMORANDUM IN OPPOSITION TO DEFENDANT'S MOTION FOR THE APPROPRIATION OF FUNDS FOR EXPERT. ASSISTANCE and REQUEST TO BE HEARD EX PART Now comes the State of Ohio, by and through the undersigned Prosecuting Attorney, and in opposition to the Defendant's motion for the appropriation of funds for expert assistance and request to be heard ex parte, says that the Court should deny the motion. ‘The Court (at the Defendant's request) has already provided for the following funds. 1. Funds for Psychologist (Dr. Bobbie Hopes). Motion 41. 2. Additional Funds for Psychologist (Dr. Bobbie Hopes). Motion 44. 3. Funds for Investigator (Thomas Hall). Motion 28. 4. Additional Funds for Investigator (Thomas Hall). Motion 45 5. Motion for Mitigation Specialist (Greg Howard). Motion 40. 6. Additional Funds for Travel and Interviews (Attorneys). Motion 43. tg Defendant does not have the right to additional experts or funds, The defense has been unable to establish additional expert assistance is necessary. Arguendo, in the event this court determines additional expert assistance is needed, the Defendant does not have the right to the expert of her choice (Philip Resnick). There are numerous experts in the same field as Philip Resnick that are appropriately qualified to render expert assistance. (Some of the experts are located in this county and nearby counties.) There has been no showing, and the Defendant will be unable to show, that Philip Resnick is the only person that can provide assistance. Further, an indigent defendant does not have the right to be put on the same playing field as a PROsECUTING ATTORNEY, BUTLER County, Onto P.O. BOX515, HAMILTON, OF 45012-0515Rockefeller, a Kennedy, or a Bill Gates. In State v. Apelt, 176 Ariz. 349, 861 P.2d 634 (1993), the court determined that the Constitution does not mandate that the State equalize the resources of an indigent capital defendant and a wealthy defendant. The court held that the indigent defendant only be given an opportunity to present his or her claims adequately and fairly. Ina case where the defendant is not indigent, that defendant may have to choose between experts based on price, location, etc. It is unfair and irresponsible to place an indigent defendant above other Defendant's simply based on their economic status. This Court has a responsibility and a duty to balance the Defendant’s rights and the interests of the State of Ohio. Defendant does not have the right to an Ex Parte hearing regarding the funds. ‘The price in which an expert demands has no bearing on the Defendant’s “strategies and defenses that the Accused chooses to explore.” (Citing Defense in Motion 37). In fact, the amount an expert demands is always a fair question at trial. Learning this number in advance gives the State zero advantage, and the Defendant cannot logically argue it will. For further legal arguments on the issue, the State incorporates by reference State’s Response to Motion 37. Defendant does not have the right to an Ex Parte hearing regarding the reason for the expert. Philip Resnick’s area of expertise is well documented, and his recent fascination with certain cases is widely known, The need for this court to grant a highly suspicious and extraordinary “behind-closed- door” meeting without a party present is not necessary in this case. The defense is unlikely to divulge any super-secret strategy when explaining why only Philip Resnick can assist them versus another more reasonably priced, qualified expert. For further legal arguments on the issue, the State incorporates by reference State's Response to Motion 37. Therefore, for all of the aforementioned reasons, the Defendant’s motion should be denied. PRosectTING Arroaney, BUTLER County, O10 P.O, BOX, HAMILTON, OF 45012-0515Respectfully Submitted, IN R. PHILLABAUM (0072219) SISTANT PROSECUTING ATTORNEY ENCH-McELFRESH (0068239) SISTANT PROSECUTING ATTORNEY BUTLER COUNTY, OHIO Government Services Center 315 High Street, 11" Floor Hamilton, Ohio 45011 (513) 887-3474 CERTIFI TE OF SERVICE This is to certify that a copy of the foregoing has been sent by ordinary U.S. mail to Melynda Cook and Christopher Pagan, attorneys for defendant,1501 First Avenue, Middletown, OH 45042 on or about same date filed. IN R. PHILLABAUM PROSECUTING ATTORNEY, BUTLER Coun, O1110, P.O. BOX, HAMILTON, OH 45012-0515STATE OF OHIO : CASE NO. CR 09-08-1435 Plaintiff - : STATE OF O10 ~ = COUNTY OF BUTLER vs. COURT OF COMMON PLEAS ASUNCION AVILA-VILLA STATE’S MEMORANDUM IN OPPOSITION TO DEFENDANT”: MOTION NO. 37 Defendant JUDGE NASTOFF STATE'S MEMORANDUM IN OPPOSITION TO DEFENDANTS TION TO PERMIT ACCUSED TO BE HEARD EX PARTE ON APPROPRIATION OF FUNDS FOR EXPERT WITNESSES Now comes the State of Ohio, by and through the undersigned Prosecuting Attomey, and in opposition to the Defendant's motion requesting that the Court allow him to be heard ex parte tegarding appropriation of funds for expert witnesses, says that the Court should deny such motion. Initially, it must be stated that the Defendant's Motion is nothing more than a basic attempt to avoid the adversarial process that is a stalwart of the American legal system, However, while an indigent defendant is entitled to expert assistance, the adversarial nature of the American legal system has never been repealed. As such, an indigent criminal defendant is entitled to obtain expert assistance at state’s expense: “only where the court finds, in the exercise of a sound discretion, that the defendant has made a particularized showing (1) of a reasonable probability that the requested expert would aid his defense, and (2) that denial of the requested expert assistance would result in an unfair trial.” ‘State v. Mason (1998), 82 Ohio St.3d 144, syllabus, approving and following State v. Broom (1988), 40 Ohio St.34 277, A “mere possibility” that some kind of expert examination “could have had some value to the defense” is not enough. See State ». Campbell (2000), 90 Ohio St.3d 320, 328, citing Mason, 82 Ohio St.3d at 150, and Broom, 40 Ohio St.3d at 283. A defense submission which presents the trial court with nothing more than speculation as to the likely value of the expert examination does not amount Prosecurine ATTORNEY, BuTLER Coury, O10 P.O. Box 515, Haumrox, OH 45012-0515to the "particularized showing” under Mason, see Camphell, 90 Ohio St.3d at 328. In the case at bar, the Defendant's motion has failed to detail exactly how such expert relates to any particular evidence. ‘Without such explanation, there is nothing about the evidence in this case which calls for technical assistance for the defense. “For these reasons, (Defendant has not made] the particularized showing required by Mason.” See State v. Issa (2001), 93 Ohio St.3d 49, 63. The Defendants speculation will not rise to the required level of “particularized showing” as to how any such expert would be needed for « fair tral, simply if he has an ex parte hearing. Furthermore, there is not a constitutional right to an ex parte hearing on a motion for expert funds. Im State v. Apelt, 176 Ariz. 349, 861 P.2d 634 (1993), the court determined that an indigent capital defendant was not constitutionally due an ex parte hearing on his request for publicly funded experts. The court's reasoning was in part because Canon 3(A)(4) of the Code of Judicial Conduct forbids ex parte Proceedings except where authorized by law. Jd. The court also went on to reject the defendant's contention that either of the U.S. Const, Amend. XIV guarantees of due process or of equal protection form the to a right to an ex parte hearing. Jd. In so rejecting, the court noted that neither constitutional provision mandates that the state equalize the resources of the indigent and the wealthy defendant but, rather, they merely require that the court guarantee the indigent an opportunity to present his or her claims adequately and fairly. Jd. Thus, the court held that an ex parte hearing is not constitutionally required on a motion for expert assistance. In the companion case, the Arizona court again disagreed with the defendant's contention that the ‘rial court had erred in denying him an ex parte hearing at which he could present his request for expert assistance, State. Apelt, 176 Ariz. 369, 861 P.2d 654 (1993), The defendant had contended that absent an ex parte hearing, the prosecution would unfairly be made aware of defense theory. Jd. But, the court, held that a defendant has no constitutionally guaranteed right to present requests for expert assistance ex parte, Id. Similarly, in State v. Phipps, 331 N.C. 427, 418 S.E.2d 178 (1992), the court declined to hold that an ex parte hearing was constitutionally required. In making its decision, the Phipps court cited the decision in Ake v. Oklahoma (1985), 470 U.S. 68, 105 8. Ct. 1087, 84 L. Ed. 2d 53, that recognized that ‘an indigent defendant's access to the basic tools of an adequate defense, including expert assistance where -ProsecuTi Arron, BUTLER COUNT, O10 P.O, BoxS1, Haatrox, OF 45012-0515,reasonably needed, isa core requirement of a fundamentally fair trial, but reasoned that an ex parte hearing on a motion for expert services was not. Jd. Finally, the Phipps court also cited passages in the decision in Ake which it believed supported its conclusion that an ex parte hearing was not required: Ake's recognition of the state's interest in its own financial affairs and its recognition that it would be impossible to ensure that indigent defendants had all the advantages and privileges at trial that result from relative wealth, Id. In State v. White, 340 N.C. 264, 457 S.E.2d 841 (1995), the court was called upon to determine expert issues under a very similar particularized need standard as isin practice for Ohio judges.! In White, the defense needed to make a threshold showing of a particularized need for an investigator and had to make a threshold showing that (1) he or she will be deprived of a fair trial without the expert assistance or (2) there is a reasonable likelihood that the expert assistance will materially assist him or her in the preparation of his or her case, {d. But, most importantly, the White court held that a defendant does not have a constitutional right to an ex parte hearing in which to set forth evidence to satisfy this standard. Likewise, in State » Garner, 136 N.C. App. 1, 523 S.E.2d 689 (1999), appeal dismissed, cert. denied, 351 N.C. 477, 2000 WL 424243 (2000), the court held that the defendant had no due process right ton ex parte hearing on his motion for funds to employ an expert. The Garner court made this finding despite a claim by the defense that allowing the state to participate would force the defendant to reveal his theory of the case. See, also, State v. Smith, 857 S.W.2d | (Tenn. 1993), (ruling that a trial court's refusal ‘ohold an ex parte hearing implicated only statutory, and not constitutional rights); Ramdas v. Com.,246 Va. 413,437 S.E.2d 566 (1993), (rejecting defendant's argument that the trial court's denial of his motion "See two part test as determined in State v_Mason (1998), 82 Ohio St3d 144, syllabus, approving and following State v, Broom(1988). 40 Ohio St34 277. * cert. granted, judgment vacated on other grounds, $12 U.S. 1217, 114. Ct.2701, 129 L. Ed 24830 (1994), on remand to, 248 Va, 518, 450 S.E.2d 360 (1994), habeas corpus granted on other grounds, 28 F. Supp. 2d 343 (E.D. Va. 1998), affd in part, rev'd in part on other grounds, 187 F.3d 396 (4th Cir. 1999), stay Branted, 120 S. Ct. $23, 145 L. Ed. 2d 404 (U.S. 1999) and cert. granted in part, 120 S. Ct. 784, 145 L, Ed. 2d 659 (U.S. 2000), reh'g denied, 2000 WL 1091466 (U.S. 2000) and judgment aff'd in part on other grounds, 120 S. Ct. ProsecuTiN Arron, BUTLER COUNTY, Oto P.0. Box 515, Havutox, OH 45012-0515foran ex parte hearing for experts violated his U. . Const, amend V right against self-incrimination, U.S. Const. amend VI right to confrontation, U.S. Const. amend XIV right to due process, and instead concluded that a defendant has no constitutional right to such a hearing) Finally, in Weeks v. Com., 248 Va, 460, 50 S.E.2d 379 (1994), habeas corpus denied, 4 F. Supp. 24497 (E.D. Va. 1998), the court rejected a constitutionally based argument that the lower court erred in denying a request to be heard ex parte on a motion for expert assistance. The Weeks court ruled that a defendant charged with capital murder has no right to an ex parte on the issue of expert services. Jd. The Court additionally noted that it refused to apply the federal statute providing the contrary. Id. Finally, while the Defendant in the present case is attempting to argue that if she is not granted an x parte hearing her rights again self-incrimination will be compromised, and she will have to unfairly tip her cards as to her strategy, neither of these two arguments are persuasive. ‘Therefore, for all of the aforementioned reasons, the Defendant's motion should be denied. Respectfully Submitted, NR. PHILLABAUM (0072219) 'SISTANT PROSECUTING ATTORNEY BUTLER COUNTY, OHIO Government Services Center 315 High Street, 11" Floor Hamilton, Ohio’ 45011 (513) 887-3474 2113 (U.S. 2000) PROSECUTING ATTORNEY, BUTLER COUNTY, O50 P.0, Box515, Hanmtox, OH 45012-0515